Expert Answers

Powers conveyed in a power of attorney are often less powerful than many people assume. First be sure your brother truly has the legal obligation to act; most powers of attorney take effect only when the principals"”the person for whom they are made"”lacks the legal capacity to act for themselves.

So if your parents need some help in their medical and daily living needs, but are still basically of sound minds, then it is most likely the power of attorney has not taken effect. While your brother's lack of attention is lamentable, there is nothing preventing you or other more head's up relatives, neighbors, and friends from pitching in where needed"”or from taking steps to secure help from outsiders if that seems more feasible.

And as an ounce of prevention: If your parents' are still of sound mind and so able to reconsider and change their choice of possible agent, you might want to consider broaching this subject with them. Truth is, many parents simply name the eldest child to act as the agent in a DPA, without giving more thought to who might be best suited to the task.

However, if your brother actually is legally empowered to act in the DPA"”either your parents are incapacitated or the document was written to take effect immediately"”but he is not doing his job, then you are in a different boat.

First, try to have a talk with him to find out why and how he is shirking his duties. You may be able to come up with easy solutions to fill in the gaps where needed.

If your brother is empowered, but plain uncooperative and neglectful, then your only option may be the somewhat drastic one of going to court and having him removed and replaced. For information about how to proceed with this locally, first consult the probate court nearest to where your parents live. Most such courts now have websites brimming with information that you can find by searching "probate" and the name of the city or county.

Community Answers

A fellow caregiver answered...

Thank you for your help. I did have the DPA and a letter from the doctor stating that both parents were incapacitated. Both parents were evaluated by a speciality clinic. This was requested by my Dad. I did verbally give up the POA as my Father was very abusive verbally at me. My parents then appointed my older brother and he lives in California and we (my parents and my family live in the Midwest). The doctors that evaluated my parents suggested that the other siblings come to stay with my parents 2 weeks to a month to help them see the mental capacity and the limited physical ability. None wanted to do this. They just supported my parents to move back into their home. Dad had open heart surgery and Mom had a stroke which lead them to the assisted living facility in which they now live in a beautiful apartment and are being very well taken care of. I have help them and continue to help them through doctor appts., hospital stays, insurance claims, and as a "supporter" between my parents and staff of the assisted living personnel.

My question is: My parents signed a Durable Power Attorney papers stating me as DPA, and the primary doctor signed a statement that both were incapacited to handle their financial and medical care, and the doctors at the speciality clinic state that both have Alzheimers and that the Assisted Living is the best place for them. Can my parents legally put my older brother as DPA months after I had been DPA? I have talked to my parents' lawyer, and stated that they had put me as DPA and I also read the statement from Mom and Dad's primary doctor stating of their incapacity to handle their affairs. My parents' lawyer stated, that he felt that they were of sound mind and that my parents can change the DPA. Is this true?

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